So Same-Sex Marriage Is Legal … Now What? Important Decisions Employers Face Now

by Foley & Lardner LLP

In Obergefell v. Hodges, the U.S. Supreme Court held that the 14th Amendment to the Constitution requires all 50 states to license marriages between same-sex couples and to recognize same-sex marriages performed out-of-state. The Court issued its historic decision in Obergefell on June 26, 2015, two years to the day of its prior landmark gay rights decision, U.S. v. Windsor. In Windsor, the Court struck down portions of the federal Defense of Marriage Act (DOMA) preventing the federal government from recognizing a same-sex couple’s marriage, even when the marriage was legal in the couple’s home state.

In a 5-4 decision, the Obergefell Court reversed the 6th Circuit’s earlier ruling upholding same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee. Writing for the majority, Justice Kennedy, joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor, found that the right to marry is a “fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

Expanding Windsor’s Impact

As a result of the Supreme Court’s ruling in Windsor, both same-sex spouses and opposite-sex spouses must be treated as “spouses” for purposes of the federal Internal Revenue Code (the Code) and other federal laws. Accordingly, employers must treat same-sex spouses and opposite-spouses equally with respect to survivor benefits under qualified retirement plans. Obergefell further underscores Windsor’s impact on plans and programs governed by the Code.

Unlike qualified retirement plans, however, the terms of health and other welfare benefit plans generally are not governed by the Code, and so were not specifically affected by the Windsor decision. Likewise, neither Windsor nor Obergefell explicitly require an employer to provide comparable benefits to same-sex spouses. Nevertheless, the Supreme Court’s decision to level the marriage playing field in Obergefell should spur employers to review their welfare benefit plans’ spousal benefits and to ask themselves some important questions.

Should Employers Offer Spousal Coverage to Their Employees’ Same-Sex Spouses?

The Supreme Court’s holding in Obergefell was limited to whether gays and lesbians have a fundamental, Constitutional “right to marry.” The Court did not, however, find that laws discriminating on the basis of sexual orientation are entitled to any sort of “heightened scrutiny” or skepticism when reviewed by a court. As a result, Obergefell does not require employers to treat the same-sex spouses of their employees the same as opposite-sex spouses with respect to the provision of health and welfare benefits.

This means employers are generally free to decide whether to offer medical coverage (or any other welfare benefits) to their employees’ same-sex spouses. Following the Windsor decision, many employers elected to do just that, and provided equal benefits to the same-sex spouses of their employees in order to lessen the administrative burdens of providing domestic partner benefits (see below).

Issues to Consider. Employers that are not yet providing health coverage to same-sex spouses will likely want to revisit the issue in light of the Obergefell decision, keeping in mind the influence of the following factors:

State Insurance Law Requirements. Most self-funded health insurance plans sponsored by private employers are governed solely by ERISA. Neither ERISA nor any other federal law requires a private employer to provide health care coverage to its employees’ spouses (or even to its employees, for that matter, though there may be economic reasons for the employer to do so). As a result, private employers sponsoring self-funded health benefit plans are not required to provide spousal coverage to their employees’ same-sex spouses.

Like self-funded plans, fully-insured health care coverage private employers purchase from insurers is governed by ERISA. In addition, however, such coverage is also subject to the requirements of state insurance laws. Such laws may require insurers to treat all “spouses” — both same-sex and opposite-sex — the same for health insurance coverage purposes, along with other coverage requirements. Employers offering their employees fully insured health coverage in such states must therefore offer their employees’ same-sex spouses the same health care benefits offered to their employees’ opposite-sex spouses.

Because these sorts of state insurance laws are preempted by ERISA, they will not apply to a private employer’s self-insured health plan. They may, however, apply to self-insured health plans sponsored by churches or state governmental entities, since those plans are exempt from ERISA and its preemption protections will not apply.

Possible Discrimination Concerns. As discussed above, the Supreme Court based its decision in Obergefell only on the proposition that the Constitution grants gays and lesbians the fundamental right to marry. The Court did not address whether laws discriminating on the basis of sexual orientation are entitled to a heightened level of judicial scrutiny.

Although the Supreme Court has yet to address whether offering health coverage only to opposite-sex spouses constitutes impermissible discrimination, some state laws may prohibit employers from discriminating with respect to the provision of employee benefits. While ERISA likely would preempt the application of such lawsuits to a self-funded health plan sponsored by private employers, an employer facing such an action, regardless of its merit, will likely still incur significant time, money, and good will defending against it. Employers operating in states with these sorts of anti-discrimination laws may elect to offer spousal benefits to their employees’ same-sex spouses simply to avoid any possible claims.

Employee/Public Relations Issues. Recent years have seen an unparalleled increase in national support for gay rights and marriage equality. As a result, employers failing to provide equal benefits to the same-sex spouses of their employees may risk public backlash (e.g., boycotts, social media blitzes, etc.) for that decision. For instance, the past few years have seen boycotts threatened against states attempting to adopt statutes purporting to protect religious freedoms (e.g., Arizona, Indiana), as well as against companies and organizations viewed as anti-gay (e.g., Chick-fil-A, Dolce & Gabbana, the Boy Scouts of America). In certain industries and commercial segments, failing to provide all employees with equal benefits, or to otherwise promote a diverse work environment, may negatively affect an employer’s ability to recruit and retain top talent.

Administrative Concerns. Employers electing to provide health coverage to the same-sex spouses of their employees as a result of Obergefell (as well as those already providing such benefits) should review their administrative procedures and plan documentation to ensure they are consistent with the employer’s overall benefits strategy. For instance, if the employer does not require employees in opposite-sex marriages to present their marriage licenses to prove their marital status, employees in same-sex marriages should not be required to do so either. Further, any requirement for proving marital status should be set forth clearly in the plan’s governing documents (formal plan document, summary plan description, etc.).

International Employees. Deciding whether to offer health care benefits to their employees’ same-sex spouses may be further complicated for employers with international operations. Some countries where the employer operates may not recognize same-sex marriages, may place restrictions on such unions, or may ban them entirely. Employers in that situation should consider how benefits will be provided to the same-sex spouses of employees transferred to such countries, especially if employees in those countries receive benefits through health plans governed by those countries’ laws. If an employee’s same-sex spouse cannot legally be covered under such plans, the employer will need to consider alternate methods for providing health coverage to that individual.

Dropping Spousal Coverage Entirely. As an alternative to offering coverage to same-sex spouses, some employers may consider dropping spousal benefits entirely. While some employers may have ideological or religious concerns about offering benefits to their employees’ same-sex spouses, others may have financial reservations. Before dropping spousal coverage, employers in the latter group should weigh the likely cost savings achieved by dropping all spousal coverage (for both same-sex and opposite-sex spouses) against the potential impact doing so may have on their public relations and marketing efforts, as well as on their ability to recruit and retain qualified employees.

Should Employers Continue to Offer Domestic Partner Coverage?

The Historic Rationale for Domestic Partner Coverage. Before marriage equality efforts gained momentum in the United States, many employers offered domestic partner health benefits to the same-sex partners of their gay and lesbian employees. Although an employer’s domestic partner coverage might have provided its gay and lesbian employees’ same-sex partners with the same health benefits as opposite-sex spouses received, the gay and lesbian employees did not receive the same tax benefits for that coverage their straight counterparts did. While coverage for opposite-sex spouses could be provided to straight employees tax-free, a gay or lesbian employee had to include the cost of domestic partner coverage in his or her gross income unless the employee’s domestic partner qualified as his or her “dependent” for tax purposes.

Reasons to Discontinue Domestic Partner Coverage. Some employers do permit unmarried, straight employees to obtain domestic partner coverage for their opposite-sex partners. Most employers, however, offered domestic partner coverage because their gay and lesbian employees could not legally marry their partners. Following the Supreme Court’s decision in Obergefell, that is no longer the case, and many employers that historically offered domestic partner coverage are revisiting the decision.

Continuing to offer domestic partner coverage means continuing administrative challenges for the employer’s human resources staff. In addition, as noted above, the cost of domestic partner coverage must be included in an employee’s income (and is subject to federal taxation) unless the employee can treat his or her domestic partner as a tax dependent. Making that determination can be time-consuming, and typically requires the employer to rely on the employee’s certification that his or her domestic partner is actually a tax dependent. If the employee is incorrect in that certification, the employer could be subject to penalties for failing to report and withhold.

In addition to the issues surrounding the determination of whether an employee’s domestic partner is the employee’s tax dependent, the employer’s domestic partner policy may require employees to provide other forms of proof and documentation (i.e., proof they are in a “committed relationship” or are financially interdependent) to prove the validity of their domestic partnership. Employees seeking health coverage for their opposite-sex spouses are not typically required to provide this sort of information. The employer’s human resources staff will be tasked with reviewing any such documentation and determining its validity.

Given the administrative headaches associated with providing it — as well as the fact that the primary reason for offering the benefit no longer exists after the Court’s decision in Obergefell — many employers may now be eager to drop their domestic partner coverage. Before doing so, however, employers should ask themselves whether domestic partner coverage is such an effective recruiting/retention tool that the benefits of offering such coverage outweighs the associated administrative hassles. The answer to this question may depend on the employer’s industry, the types of individuals it seeks to employ, and whether it offers domestic partner benefits only to its gay and lesbian employees or to all its employees.

Transition Issues. If after weighing the pros and cons of offering domestic partner benefits, an employer elects to discontinue that coverage, it will need to determine how best to communicate its decision and transition affected individuals to other coverage. As part of this process, such employers should consider the following:

  • Will the employer offer a transition period before dropping its domestic partner coverage to allow employees sufficient time to marry their domestic partners? If so, how long will the period be?
  • Will the employer permit current employees to continue domestic partner coverage for their partners under some sort of “grandfather” policy, while offering only spousal coverage to new employees?
  • If eligibility/type of benefits available is based on the length of an employee's marriage, will the employer count periods during which the employee was part of a domestic partnership for this purpose?
  • Will the employer continue domestic partner coverage for older employees who might lose Social Security or other retirement benefits if they marry?


The Supreme Court’s decision in Obergefell recognizes the fundamental right of gay and lesbian couples to marry. Despite Obergefell’s historic implications, the decision does not require employers to offer their employees’ same-sex spouses benefits comparable to those they offer to their employees’ opposite-sex spouses. Nevertheless, by legalizing same-sex marriage throughout the United States, Obergefell has provided employers with an excellent opportunity to revisit their current benefits policies. Employers that have not already done so should consider whether now is the time to extend health care coverage to their employees’ same-sex spouses. In addition, employers currently offering domestic partner coverage should revisit that decision to determine whether it still makes sense post-Obergefell.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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